QBE Insurance (Australia) Limited v Mellick
[2021] NSWPIC 466
•30 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Mellick [2021] NSWPIC 466 |
| CLAIMANT: | Karma Mellick |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 30 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act, 2017; claimant now 88 years of age; significant pre-accident medical history including rheumatoid arthritis and bilateral hip replacements; injured as pedestrian; fracture of the left olecranon; fracture of the left public rami; fracture of the left humerus; fracture of the right lateral malleolus; good recovery with ongoing pain, stiffness and restriction of movement in left shoulder, left elbow and right ankle; increasing assistance required with personal hygiene, grooming and domestic duties; Held – claimant sustained serious injury; settlement of damages for non-economic loss approved. |
| DETERMINATIONS MADE: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the 2017 Act). 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines |
Introduction
On 28 March 2019 Ms Karma Mellick sustained serious injury in a motor vehicle accident (the accident).
Mrs Mellick has made a claim against QBE Insurance (Australia) Limited the CTP insurer of the at fault vehicle, for lump sum damages.
The Insurer accepted liability for Mrs Mellick’s claim for statutory benefits and has paid treatment benefits to, or on behalf of Mrs Mellick.
The Insurer has accepted that Mrs Mellick had non-minor injuries and pursuant to Division 3.4 of the 2017 Act she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
The Insurer has conceded Mrs Mellick has sustained a whole person impairment greater than 10% and is entitled to compensation for non-economic loss.
Mrs Mellick and the Insurer have agreed to settle the claim for lump sum damages for the sum of $150,000. Because Mrs Mellick is not represented by a lawyer, her settlement must be approved in accordance with the 2017 Act.
The Insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 30 July 2021. Mrs Mellick participated as did her son Phillip Mellick. The Insurer was represented by Ms Viji Mohan.
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre- establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the 2017 Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
Documents Reviewed
In considering this application for approval I reviewed the following documents:
·Application for personal injury benefits dated 2 April 2019;
·Certificate of capacity/certificate of fitness dated 2 April 2019;
·Application for damages under common law dated 12 February 2021;
·Clinical notes of St Vincent’s Hospital;
·Eastern Suburbs Private Hospital Inpatient Rehabilitation Discharge Summary;
·Report of Dr Gavin Soo, Shoulder and Knee Surgeon dated 27 November 2019;
·Report of A/Prof Steven Faux, Specialist in Pain Management dated 30 July 2019;
·Operation report of Dr Soo dated 29 March 2019;
·Referral from Dr Zavras to Dr Gavin Soo dated 18 November 2019;
·Report of Dr Louis Lee Registrar on behalf of A/Prof Faux dated 29 April 2019;
·Report of Dr Louis Lee Registrar on behalf of A/Prof Faux dated 10 May 2019;
·Clinical notes of Botany Medical Centre;
·Various Allied Health Recovery requests;
·Report of Dr Richard Powell, orthopaedic surgeon dated 1 June 2021, and
·Email from the Insurer to Mrs Mellick dated 8 June 2021 containing offer of settlement and email in reply dated 9 June 2021 accepting offer.
The relevant law
Section 6.23(1) of the 2017 Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23(2) and (3) of the 2017 Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with the requirements of the 2017 Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a)the proposed settlement satisfies the timing requirements in s 6.23(1) of the 2017 Act;
(b)the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mrs Mellick, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c)Mrs Mellick understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Review of the evidence
Mrs Mellick is now 88 years of age.
Prior to the accident Mrs Mellick was independent in all activities of daily living. She lived and continues to live in a double storey house with her family where she resides on the ground floor and her family resides upstairs. Mrs Mellick was still driving in her local area, active in her community and enjoyed taking care of her young grandchildren. Mrs Mellick’s ability to perform domestic tasks is restricted and she has been receiving external assistance on a fortnightly basis for over 10 years.
In her claim form Mrs Mellick reported she suffered from “spondylosis and normal degenerative of the spine and arthritis consistent with an 86-year-old woman who is active, alert and independent”.
On 28 March 2019 Mrs Mellick was walking across Anzac Parade at Maroubra when she was struck from her right side by a vehicle which had been parked in the central area between the divided roadways. The mirror of the vehicle struck her in the right flank spinning her around and causing her to lose balance. As she fell, she was struck on her left upper limb by the car as it moved away causing her to fall to the roadway.
Mrs Mellick was conveyed by ambulance to St Vincent’s Hospital. She was an inpatient until 9 April 2019 when she was able to independently mobilise, and her pain was well managed with Endone and paracetamol.
Mrs Mellick sustained the following injures:
·a fracture of the left olecranon treated surgically by Dr Soo with open reduction and internal fixation;
·a fracture of the left pubic rami managed conservatively;
·a fracture of the left proximal humerus treated with closed reduction and immobilisation under the care of Dr Soo, and
·a fracture of the right lateral malleolus treated conservatively with a period of immobilisation in a CAM boot.
Mrs Mellick was admitted to Eastern Suburbs Private Hospital from 9 April 2019 until 22 May 2019 for rehabilitation. Mrs Mellick was discharged home into the care of her son.
Following discharge, Mrs Mellick participated in an outpatient day rehabilitation program including physiotherapy and occupational therapy sessions to improve her mobility and her shoulder range of motion.
Dr Soo reported on 27 November 2019 that Mrs Mellick’s left shoulder was improving with regular physiotherapy. She was continuing to experience on and off numbness and nerve type pain extending from the left elbow down to the wrist and occasionally the hands. Occasionally she would get pins and needles to her fingers.
Mrs Mellick was reviewed by Dr Steven Faux on 30 July 2019. He reported she was progressing exceptionally well. He also noted complaints of nerve pain in the left arm from the elbow down to the hand occurring for a few minutes precipitated by exercise.
Mrs Mellick was reviewed by Dr Richard Powell on 1 June 2021.
Dr Powell recorded the following pre-existing medical history:
·rheumatoid arthritis for over 50 years with symmetrical deforming polyarthropathy in the hands together with the involvement of her neck, back, hips, knees and ankles;
·osteoporosis;
·reflux esophagitis;
·thyroid disease;
·bilateral hip replacements;
·diverticular disease, and
·hypercholesterolaemia.
Dr Powell recorded Mrs Mellick takes regular medications for her thyroid, reflux, and cholesterol.
Dr Powell noted Mrs Mellick had recovered well although she continued to be aware of stiffness and restriction in range of motion of the left shoulder. She continues to experience intermittent pain in the left elbow which is activity related but also has episodes of numbness from the elbow to the hand in a global fashion which settles over minutes. Mrs Mellick also has some intermittent discomfort over the lateral aspect of the right ankle. He concluded Mrs Mellick no longer requires specific treatment for her injuries.
However, Mrs Mellick informed me during the teleconference that she had sought further physiotherapy although the appointment had now been deferred several times because of COVID-19.
In relation to Mrs Mellick’s domestic, social, and recreational activities Dr Powell stated:
“Her ability to perform ADLs has been steadily decreasing in line with her advancing age and multiple medical co-morbidities. As such, the assistance required with her ADL’s has increased in that time and this is undertaken by her son. Her ongoing left upper limb restrictions mean that she has required increased assistance with tasks of personal hygiene and grooming and domestic duties.
Dr Powell concluded Mrs Mellick had made an excellent recovery and her rehabilitation should be interpreted in the context of her age and multiple medical co-morbidities.
Should I approve the settlement
Section 1.4 of the 2017 Act defines non-economic loss as:
(a)pain and suffering;
(b)loss of amenities of life;
(c)loss of expectation of life, and
(d)disfigurement.
The current maximum payable for non-economic loss is $590,000.
I am satisfied that Mrs Mellick is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the Insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
I am satisfied Mrs Mellick understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Mrs Mellick understood there will be no repayment to Centrelink or any impact on any ongoing entitlements.
I was advised the Insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act 1995 (Cwlth) from the settlement sum. The Insurer has agreed to indemnity Mrs Mellick in respect of any charge raised by Medicare in respect of reasonable and necessary treatment expenses which are causally related to the accident.
I advised Mrs Mellick if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, she should refer that charge to the Insurer for payment as part of their obligation to pay her reasonable treatment costs.
In approving the settlement, I take into account the serious injury sustained by
Mrs Mellick and the impact of the ongoing disabilities on Mrs Mellick’s activities of daily living. I also note the lengthy hospitalisation and ongoing rehabilitation experienced by Mrs Mellick because of the accident. The impact of this accident will undoubtedly mar Mrs Mellick’s remaining years.
I am of the view that the sum of $150,000 is an appropriate award of damages for non- economic loss.
Conclusion
I find the requirements of s 6.23(1) of the 2017 Act satisfied where it is more than two years since the motor accident and where it is agreed Mrs Mellick has sustained a permanent impairment greater than 10%.
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mrs Mellick.
I am satisfied Mrs Mellick is aware she can seek legal advice but does not wish to do so.
I am satisfied Mrs Mellick understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Mrs Mellick is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the 2017 Act I approve the settlement of Mrs Mellick’s claim for damages
Susan McTegg
Member (Motor Accidents Division) Personal Injury Commission
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